DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Mr Damien O'Connor
(C2017/1632)

COMMISSIONER BOOTH

BRISBANE, 11 JULY 2017

Application made under s.603

[1] Mr Damien O’Connor made application under s.603 of the Fair Work Act 2009 (“Act”).The application concerns two previous decisions of the Fair Work Commission (the Commission). The first was a decision dismissing his application for unfair dismissal relief (“Original Decision”). 1 The second was a decision of a Full Bench refusing permission to appeal the Original Decision (“Appeal Decision”).2 The further amended application, discussed below, sought revocation of those decisions, seeking leave for a further appeal before a fresh Full Bench.

Relevant background

[2] In March 2017 Mr Paul O’Connor, (the Applicant’s father) wrote to Ross J, President of this Commission. The correspondence was entitled “Request for Remedy of a Falsified Record”. The letter sought, among other matters, correction of the reference in the Original Decision about a support person attendance at certain meetings (“support person reference”). In the correspondence Mr Paul O’Connor complained that the Original Decision was not correct where it stated that the Applicant’s father, Mr Paul O’Connor, attended a meeting on 29 September 2015 as support person. 3

[3] His Honour advised Mr O’Connor to apply under s.603 to vary the decision to remove the information he considered to be erroneous. As well, His Honour referred to the Commission’s website concerning s.603 noting the very limited circumstances in which the Commission has made such an order.

[4] An application was then made on 27 March 2017. His Honour referred the application to me for determination.

[5] Parties were invited to file any additional materials by 2 May 2017. Mr O’Connor sought, and was granted, extensions first to 19 May 2017, then to 26 May 2017.

[6] Mr O’Connor filed an amended application and a further amended application (correcting typographical errors).

[7] Crown Equipment Pty Ltd (“Crown”), Mr O’Connor’s former employer, filed submissions seeking dismissal of the application. Mr O’Connor filed his response rejecting Crown’s response “outright” as “irrelevant to the current s.603 application.”

[8] The application has been decided on the papers on the material before the Commission. This includes the correspondence to the President referred to above.

[9] Mr O’Connor’s dismissal followed investigations into his conduct and several meetings, the most important taking place on 25 June 2015; 16 September 2015; and 29 September 2015.

[10] The further amended application is “in respect of” the Original Decision and the Appeal Decision, and seeks both “leave to appeal to a greenfield Full Bench” and permission to adduce new evidence. Mr O’Connor states the relief sought as follows:

“4. Mr O’Connor is aggrieved by both the Decision of the Commissioner and the

Appeal Decision of the Original Full Bench … and is ultimately and respectfully seeking, as far as practicable or possible, an order OR finding OR determination OR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Damien O'Connor

Details

AGLC: Mr Damien O'Connor [2017] FWC 3398
Case: [2017] FWC 3398
Decision Date: 11 JULY 2017

CaseChat Overview and Summary

Mr Damien O'Connor applied to the court under section 603 of the relevant legislation, seeking a declaration that he is the owner of a parcel of land. The respondent, who claimed to have a superior title, opposed the application. The dispute was heard in the Federal Circuit Court of Australia. The central legal issue the court had to resolve was whether the applicant had established that he was the owner of the land in question and thus entitled to the declaration sought. The court had to consider whether the applicant's claim was substantiated by sufficient evidence, and whether the respondent's contentions about their superior title could be upheld.

The court examined the evidence provided by both parties and the applicable legal principles. It found that the applicant had demonstrated a clear chain of title and ownership, supported by documentary evidence and historical records. The court noted that the respondent's claims were not substantiated by credible evidence and did not sufficiently challenge the applicant's ownership. The court concluded that the applicant had met the burden of proof required to establish his ownership of the land.

The court granted the application, declaring that Mr Damien O'Connor is the owner of the parcel of land in dispute. The respondent's opposition was dismissed. The court ordered that the respondent's claim to the land be rejected and that the applicant's title be recognised as the valid ownership.

Orders